Gilberton Coal Co., Gilberton Energy Corp., Bear Ridge Shops, Inc , Gil Pre Corp. B D Mining Co. And R& R Energy Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 344 (N.L.R.B. 1988)

344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Gilberton Coal Company, Gilberton Energy Corpora
ton, Bear Ridge Shops , Inc, Gil Pre Corpora
ton, B D Mining Company , and R&R Energy
Corporation and International Union, United
Mine Workers of America Cases 4-CA-14515
and 4-CA-14812
September 30 1988
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 4 1986 Administrative Law Judge
Thomas A Ricci issued the attached decision The
General Counsel and Charging Party filed excep
tions and a supporting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge s rulings findings i and
conclusions only to the extent consistent with this
Decision and Order
I REQUESTS FOR INFORMATION
This case primarily involves complaint allega
tions that the Respondent committed numerous
violations of Section 8(a)(5) of the Act with respect
to information requested by the Union during the
parties protracted contract negotiations in 1984
The judge recommended dismissal of these allega
tions in their entirety on alternative grounds First
he granted the Respondents motion to dismiss on
the ground that the General Counsels dismissal of
the Union s charges of general bad faith bargain
ing and unilateral changes absent valid bargaining
impasse necessarily precluded finding the specific
information request violations of Section 8(a)(5) at
issue here Second the judge reviewed the merits
of the information request allegations on the basis
of evidence presented and found no violations
We disagree with the judge and reverse his
ruling on the Respondents motion to dismiss The
General Counsels refusal to include the additional
8(a)(5) allegations in the complaint did not a for
tiori mean that the Respondent could not have
committed the specific 8(a)(5) violations actually
alleged nor did the refusal have any binding effect
on the Board s independent adjudicatory review of
I The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judges credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
the complaint and evidence presented Based on
such a review as set forth below we agree with
the judge that with a single exception the General
Counsel has failed to prove 8(a)(5) violations al
leged
Background
The Respondent which is a single integrated en
terpnse composed of six companies engaged in re
claiming anthracite coal was a party to a 3 year
agreement due to expire on May 31 1984 2 be
tween Anthracite Operators Wage Negotiating
Committee (the Association) and the Union The
Respondent had been a member of the Association
for many years In March the Respondent timely
notified the Union that it was withdrawing from
the Association and requested separate negotiations
for a new agreement
The parties held preexpiration negotiating ses
sions on May 18 and 22 Prior to and during these
sessions the Union requested certain information
from the Respondent as further discussed below
At the May 30 meeting the Respondent in order
to allow more time for bargaining offered to
extend the existing agreement subject to a 14 day
notice of cancellation The Union refused the offer
Instead it proposed that the Respondent could
avoid a strike by signing a letter of intent agreeing
to abide by the same terms and conditions that
were reached between the Union and the Associa
tion in concurrent bargaining The Respondent re
jected the Union s counterproposal The Union
struck the Respondent at midnight on May 31 3
The pickets carried signs reading No Contract No
Work Approximately a week later the signs were
changed to allege unfair labor practices The par
ties continued to meet and exchange proposals and
the Union continued to request various information
from the Respondent In October after impasse
had been reached the Respondent implemented its
last offer and hired strike replacements 4
We will now examine the individual allegations
that the Respondent violated Section 8(a)(5) by
failing to supply the information the Union request
ed at various times during the negotiations Al
though the judge recommended dismissal of all al
legations his analysis of the information request
issues frequently failed to identify a specific reason
for dismissal of a specific allegation
All dates hereafter refer to 1984
We agree with the judge that the strike was an economic one at its
inception
4 We disavow the judge s finding that the Union acted in bad faith in
bargaining with the Respondent and in requesting information from it
291 NLRB No 50
GILBERTON COAL CO 345
A Financial Information
In its letter of March 29 notifying the Union of
its withdrawal from the Association and its desire
to seek separate negotiations the Respondent
stated that it was smaller and more limited in oper
ations than the other members of the Association
and noted the industry s poor economic condition
At the first couple of bargaining sessions, the Re
spondent told the Union that it had left the Asso
ciation because the coal market was shrinking and
that it needed greater flexibility in order to respond
to the worsening economic situation It stated that
signing a contract containing certain concessions
which unlike the Association contract recognized
the particular needs of the Respondents reclama
tion business was a prerequisite to investing a sub
stantial amount of new capital in developing new
products facilities and markets At some point
during negotiations the Respondent also informed
the Union that without changes it would waste
away Further the Respondent told the Union that
the strike was costing it a lot of money
On June 15 the Union wrote the Respondent a
letter requesting all the information that the Re
spondent had relied on in claiming that it was not
competitive under the expired Association con
tract In a June 18 letter the Respondent replied
that it had relied on steadily declining sales pro
duction, and employment over a 10 year period as
well as statistics published by the Pennsylvania De
partment of Environmental Resources that indicat
ed that there was a more rapid decline among
unionized than nonunionized coal producers
Subsequently on October 9 the Union asked the
Respondents vice president, Pierce, to furnish the
records that supported the Respondents conten
tions that it was losing money The Respondent s
October 16 letter to the Union stated in pertinent
part I
Quite to the contrary of your letter of Octo
ber 9 1984 Mr Pierce and I have not ever
pled poverty or financial inability of the
Companies for which we are negotiating We
have offered substantial wage increases and
benefit improvements and maintenance of in
surance benefits with additional premium costs
to be paid by the Companies
What we have repeatedly made clear is that
there has been a steady decline in sales
volume with a corresponding loss of employ
ment opportunities In that context, we have
provided you with very detailed data both
from Company and public records We have
indicated that the Companies would be willing
to consider capital investment in an effort to
reverse the trend, if the Union and the em
ployees are willing to enter into a contract
which we believe would lead to greater over
all earnings by the employees although it
would eliminate certain pay for hours not
worked and many of the restrictive provisions
of the old Wage Agreement R
The Supreme Court in NLRB v Truitt Mfg Co
351 U S 149 (1956) held that an employer that ob
sects to a union s bargaining demands on the basis
that it is unable to afford the union s proposals is
obligated to permit the union to examine the books
and records to verify the employers contentions
In Buffalo Concrete 276 NLRB 839 841 (1985)
enfd in relevant part 803 F 2d 1333 (4th Cir 1986)
the Board held that it would not assume that an
employer who no longer wishes to pay wages and
benefits it once agreed to is unable to make such
payments' The Board further stated that an em
ployer s contention that it wanted to obtain a more
competitive position in the industry did not raise a
Truitt obligation to provide a union with financial
information Here as the Union admits the Re
spondent never pled poverty or the inability to
pay Rather it desired certain changes from the
previous contract in order to make capital im
provements to become more competitive We
therefore find that the Respondent was not obligat
ed to furnish the Union its financial records and
accordingly we affirm the judge s dismissal of this
complaint allegation
B Ash Content of Coal Produced
Under the Associations contract that expired on
May 31 the Respondent was required to pay royal
ties to the Union s pension fund depending on the
amount of coal produced and the amount of ash in
that coal The smaller the amount of ash in the
coal the greater the royalty payment 5 The con
tract also called for the Respondent to make
monthly reports and contributions to the fund The
reports filed by the Respondent stated the ash con
tent and the amount of coal produced One of the
three trustees in charge of the fund was a member
of the International Union
On May 1 the Union sent the Respondent a
letter asking for information with respect to the ash
content of coal produced Two days later the Re
spondent consented to the release of all the reports
submitted by it to the pension fund The Union s
attorney and principal negotiator August Vehar
testified that the Union received the reports At the
negotiating session on May 18 the Respondent told
the Union that the Union s representatives could
S The judge erroneously stated that the greater the ash content the
greater amount of money the Respondent had to pay the fund
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
secure the information from an audit that had been
conducted by the fund The Union renewed its re
quest that the information be furnished directly to
it In a letter dated May 21 the Respondent fur
nished the Union with tonnage reports for 1981
1982 1983 and the first 3 months of 1984 which
included the type of coal produced the ash content
of the coal and the royalties paid the fund Fur
ther at the bargaining meeting held the following
day the Respondent presented the Union with a
summary of their 1984 contributions to the fund
The Union continued to ask the Respondent for
ash content information In mid June the Union re
ceived the audit performed by the fund It had
been conducted however in 1982 and covered
only two of the Respondents companies The
Union also requested the work papers compiled
during the audit because it believed the Respondent
was filing false reports to the trustees The Re
spondent refused the Union access to the work
papers It informed the Union that any discrepancy
between tonnage reports submitted to the various
government agencies and the fund was the result of
different reporting requirements Finally at a sub
sequent bargaining meeting the Respondent asked
whether a new more current certified audit from
the fund would satisfy the Union Vehar said no
We find that the Respondent provided the Union
with the requested ash coal content information
both directly through the May 21 letter and indi
rectly through the authorized release of the month
ly reports to the pension fund In the absence of a
sufficient evidentiary basis for the Union s suspi
cion of fraud we find that the General Counsel
failed to establish the Union s need for the underly
ing work reports Furthermore we note that the
Union rejected the Respondents suggestion of a
new updated audit of its royalty payments to the
fund Accordingly we dismiss this allegation of the
complaint 6
C Corporate Interrelations
The expiring Association contract covered all six
of the Respondents companies as a single employ
er At the start of negotiations for a new contract
the Union was concerned with whether the Re
spondent was a single employer and/or alter ego of
Reading Anthracite which had remained in the
Association The Respondent orally informed the
Union in the early bargaining sessions of the inter
relationships between its six companies including
the interchange of personnel and equipment and
6 In dismissing the allegation we do not rely on either the judge s state
ment that the Union had access on its own to the requested information
or his reliance on the General Counsel s dismissal of the charge alleging
that the Respondent had refused to make royalty payments to the fund
the sharing of a common office staff and superin
tendent The Respondent also disclosed that all
supplies were purchased in bulk and that a single
health care policy covered all the employees Fur
ther it gave the Union full information about stock
ownership and the Respondents relationship with
Reading Anthracite The Respondent offered to ne
gotiate as a single employer either single or sepa
rate contracts and asked the Union for proposals
on the issue The Union stated that because of in
ternal differences among the local unions and bar
gaining committees it was unable to present a pro
posal Subsequently the Respondent submitted
written proposals for a single contract covering all
six of its companies
In a June 15 letter the Union requested the Re
spondent to supply it with information concerning
whether the six companies constituted a single
employer joint employer or joint venture and/or
alter egos The Respondent replied by letter that
it had already provided all the relevant informa
tion On June 27 the Union repeated its request for
information regarding the separateness of the Re
spondent s companies
We find that the Respondent had already pre
sented the Union with sufficient information re
garding the structure and ownership of its various
companies as well as how they related to each
other We also note that the Union was aware from
the beginning of negotiations that the Respondent
was bargaining as a single employer Accordingly
we dismiss this complaint allegation
D Culm Bank/Guerna Sale
During negotiations the Union asked the Re
spondent if it had sold or leased any land to
Guerna The Respondent replied that Guerna had
purchased a culm bank of coal silt from it and that
the documents pertaining to the sale were regis
tered in the Schuylkill County courthouse The
Union received the documents The Union wished
to determine whether it could lawfully picket
Guerna as an ally of the Respondent It therefore
wrote the Respondent a letter on October 25 re
questing information regarding the sale of the culm
bank to Guerna including the names of the Re
spondent s customers whether the Respondent had
removed material from the culm bank, and if so
who had been its customers The Respondent re
sponded by letter on November 8 It refused to
supply the names of its customers in order to serve
the Union s secondary boycott tactics The Re
spondent also informed the Union that it had re
moved material from the culm bank in the past
year that it did not have specific records of the
GILBERTON COAL CO ' 347
man hours involved and that it had sold the mate
real to its customers
We find that the Respondent by informing the
Union that it had sold the culm bank to Guerna
and disclosing where the relevant documents were
filed had supplied the Union with sufficient infor
mation to satisfy the Union s doubts about the le
gitimacy of the sale We also conclude that the
General Counsel failed to establish the relevance of
the remainder of the requested information regard
ing the names of the Respondents customers 7 Ac
cordingly we find no merit to this allegation s
E Gil Pre
During the initial negotiating sessions the Re
spondent explained to the Union that its company
Gil Pre was engaged in precleaning culm banks to
eliminate the majority of the waste products before
processing the coal At a subsequent bargaining
meeting on July 31 the Union asked the Respond
ent how much coal was mined by Gil Pre The Re
spondent answered that Gil Pre s reclamation per
mits did not allow any mining, but that pursuant to
directives by state inspectors to remove an out
cropping of coal exposed at one culm bank during
the reclamation work it had removed approximate
ly 10 000 tons during the last 11 years In Novem
ber the Union asked whether the Respondent
would be required under its contract proposal to
pay royalties into the pension fund on coal re
moved by Gil Pre The Respondent stated that
such payments did not apply to Gil Pre
We find as set forth above that the Respondent
sufficiently complied with the Union s request for
information concerning the amount of coal mined
by Gil Pre and whether the proposed pension plan
applied to Gil Pre Accordingly we dismiss this al
legation of the complaint
F Health and Safety Information
The Union on June 27 wrote a letter to the Re
spondent requesting a list of contaminants being
monitored copies of any cautionary or advisory
pamphlets distributed to employees or supervisors
regarding the use of chemicals and information
pertaining to occupational illnesses under work
men s compensation The Respondent advised the
Union that a sealed field unit was used to monitor
7 We find it unnecessary to pass on the judge s finding that because the
General Counsel had filed a complaint which was subsequently settled
alleging that the Union had violated Sec 8 (b)(4) by picketing the Re
spondent s customers the Respondent was not obligated to supply their
names to the Union
8 In the absence of exceptions Member Cracraft finds it unnecessary to
pass on the judge s apparent finding that the response to the request for
information regarding the sale of the culm bank to Guerna satisfied the
Act s i
gravity contained radioactive material and was in
spected by the Texas Nuclear Corporation The
Respondents witnesses testified that no other con
taminants were used or monitored by unit employ
ees The Respondent also informed the Union that
it did not possess either the requested pamphlets or
any information concerning occupational illnesses
There is no evidence to indicate that the Re
spondent monitored other contaminants Also t the
only hazardous chemical admittedly on the Re
spondent s premises was used exclusively in labora
tory testing by supervisors The only credited evi
dence about any advisory pamphlets indicates that
the Respondent did not obtain such pamphlets until
several months after the parties had reached a
lawful impasse in the bargaining for which the
Union had requested the information Thus the
pamphlets were not in the Respondents possession
at the time the Union made its request for such in
formation as the Respondent was only able to
obtain these pamphlets after requesting the manu
facturers to forward this information to the Re
spondent Accordingly, we find that the Respond
ent did not violate Section 8(a)(5) by failing to fur
nish further information to the Union
G Wages Paid Strike Replacements
The Respondent 'started hiring strike replace
ments in early October and on 25 October the
Union asked the Respondent for the wage rates
paid the replacements The Respondent replied by
letter dated November 8 that as to their wages
hours and conditions of employment see our Sep
tember 25 1984 proposal The proposal called for
all employees hired after May 31 to be paid $7 75
per hour In the absence of evidence indicating that
the Respondent was paying a different rate we
find that the Respondent supplied the Union with
the requested information
H Access to the Facilities for Health and Safety
Inspection
The Respondents expired Association contract
had provided the Union with access to the Re
spondent s facilities to inspect health and safety
conditions Union officials had visited the facilities
on numerous occasions under the old contract
During negotiations for a' new contract the Union
informed the Respondent that employees had re
ported unhealthy conditions at the Respondent s
premises, such as the lack of potable water a toilet
leaking into a drinking fountain and poor shower
conditions On July 19 the Union requested permis
sion to tour the facilities in order to check out the
employees contentions ' The Respondent refused
on the basis that the facilities were shut down and
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union could receive the information concern
ing their conditions from the union officials who
had visited the premises under the old contract
In Holyoke Water Power Co 273 NLRB 1369
1370 (1985) enfd 778 F 2d 49 ( 1st Cir 1985) the
Board balanced the employers right to control its
property against employees right to proper repre
sentation in determining whether a union should be
granted access to an employers plant in order to
obtain relevant safety and health data The Board
stated that access must be granted when responsi
ble representation could only be achieved by the
Union having access Here inasmuch as the only
way the Union could determine the current accura
cy of the employees allegations about the un
healthy conditions at the Respondents facilities
was to visit them and an inspection tour would
have caused minimal disruption because the strike
had closed the facilities we find that the Respond
ent violated Section 8 (a)(5) and ( 1) by denying the
Union access
Moreover we find that the contracts access pro
visions survived the expiration of the agreement
Inasmuch as the Respondent and the Union had
not yet bargained to impasse on July 19 we con
clude that the Respondents unilateral change of
these provisions constitutes a separate independent
basis for finding that the Respondent unlawfully
denied union representatives the right to inspect
the premises for unsafe or unhealthful working
conditions
II INTERROGATION
At a prehire interview in February the Respond
ent s supervisor Brian Rich asked applicant John
Stetts what he thought about the Union Stetts re
plied They re pretty good Rich said That s
not a very good thing to say to me Stetts later
said he could either take the Union or leave it
Stetts was hired at the interview and given a dues
checkoff card to sign The judge found the inter
view not coercive especially with the Respondent
having Stetts sign the dues authorization card Ac
cordingly, he dismissed this allegation of the com
plaint We disagree
It is well established that questions concerning
union preference in the context of job application
interviews are inherently coercive and unlawful
even when the applicant is hired 9 Further Rich s
statement would reasonably lead Stetts to conclude
that his hire and continued employment required
him to refrain from expressly supporting the
Union 10 Indeed the Respondent did not actually
' Thriftway Supermarkets 276 NLRB 1450 1459-1460 ( 1985) Quality
Drywall Co 254 NLRB 617 (1981)
10 Jones Plumbing Co 277 NLRB 437 439 (1985)
hire Stetts until after he had made his more neutral
take it or leave it statement about the Union Ac
cordingly we find that the Respondent violated
Section 8 (a)(1) by interrogating Stetts concerning
his union sympathies
III NATURE OF THE STRIKE
Finally we must determine whether the Union s
economic strike was converted into an unfair labor
practice strike by the Respondents unlawful con
duct There is no evidence that the Respondent s
single unlawful interrogation of Betts was a factor
in precipitating the Union s strike There also is no
evidence that the Respondents unfair labor prac
tice of refusing the Union access to its premises ag
gravated or prolonged the strike Furthermore
these unfair labor practices are unlike an unlawful
withdrawal of recognition which creates such sen
ous impediments to the settlement of a strike that
the Board can find conversion to an unfair labor
practice strike even in the absence of direct evi
dence that the strikers consciously predicated their
strike on that unfair labor practice Compare e g
Brooks & Perkins 282 NLRB 976 (1987) and cases
there cited The strike began and continued be
cause of the parties failure to resolve their contract
bargaining differences Accordingly we find that
the economic strike was not converted into an
unfair labor practice strike
CONCLUSIONS OF LAW
I By unilaterally denying the union representa
tives access to the Respondents bargaining agree
ment that expired on May 31 1984 and in addi
tion denying the Union s request for access by its
officials to the Respondents facilities in order to
inspect the health and safety conditions that were
relevant to the Union s discharge of its bargaining
obligation the Respondent refused to bargain in
good faith and violated Section 8 (a)(5) and (1) of
the Act
2 By interrogating employees about their union
sympathies during job applicant interviews the Re
spondent violated Section 8(a)(1) of the Act
REMEDY
Having found that the Respondent violated Sec
tion 8(a)(5) and ( 1) of the Act we will order it to
cease and desist therefrom and to take certain of
firmative action designed to effectuate the purposes
and policies of the Act
ORDER
The National Labor Relations Board orders that
the Respondent Gilberton Coal Company Gilber
GILBERTON COAL CO
ton Energy Corporation Bear Ridge Shops Inc
Gil Pre Corporation B D Mining Company and
R&R Energy Corporation Gilberton Pennsylva
nia its officers agents successors and assigns
shall i
I Cease and desist from
(a) Unilaterally denying the union representatives
access to the Respondents facility as set forth in
the collective bargaining agreement that expired on
May 31 1984 and in addition by refusing to bar
gain, in good faith with International Union United
Mine Workers of America by denying the Union s
request for access to the Respondents facilities to
inspect health and safety conditions that are rele
vant to the Union s discharge of its bargaining rep
resentative duties
(b) Coercively interrogating employees about
their union sympathies during job application inter
views ,
(c) In any like or related manner interfering
with restraining or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) On request reinstate provisions for access by
the union representatives to the Respondents facili
ty as set forth in the collective bargaining agree
ment that expired on May 31 1984 and in addi
tion on request grant access by union officials to
the Respondents facilities for a reasonable period
sufficient to permit the officials to'fully inspect the
health and safety conditions ,
(b) Post at its 1Gilberton Coal Company, Gilber
ton Energy Corporation Bear Ridge Shops Inc
Gil Pre Corporation B D Mining Company and
R&R Energy Corporation, Gilberton Pennsylvania
facilities copies of the attached notice marked
Appendix I' Copies of the notice on forms pro
vided by the Regional Director for Region 4 after
being signed by the Respondents authorized repre
sentative shall be posted by the Respondent imme
diately upon receipt and maintained for 60 consec
utive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Re
spondent to ensure that the notices are not altered
defaced or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
349
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT unilaterally deny the union repre
sentatives access to our facility as set forth in the
collective bargaining agreement that expired on
May 31 1984 and in addition WE WILL NOT refuse
to bargain in good faith with International Union
United Mine Workers of America by denying a re
quest for access by its officials to our facilities in
order to inspect health and safety conditions that
are relevant to the Union s discharge of its bargain
ing obligation
WE WILL NOT coercively interrogate employees
about their union sympathies during job application
interviews
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL on request reinstate provisions for
access by the union representatives to our facility
as set forth in the collective bargaining agreement
that expired on May 31 1984 and WE WILL on re
quest grant access by union officials to our facili
ties for a reasonable period sufficient to permit the
officials to fully inspect the health and safety con
ditions
GILBERTON COAL COMPANY GIL
BERTON ENERGY CORPORATION
BEAR RIDGE SHOPS INC GIL PRE
CORPORATION B D MINING COMPA
NY AND R&R ENERGY CORPORA
TION
Bruce G Conley Esq for the General Counsel
John W Pelino Esq and Howard A Rosenthal Esq
(Pelmo & Lentz) of Philadelphia Pennsylvania for the
Respondent ,
Jonathan Walters Esq (Kirschner Walters Willtg Wein
berg & Dempsey) of Philadelphia Pennsylvania for
the Charging Party
DECISION
i a If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board r
STATEMENT OF THE CASE
THOMAS A Ricci Administrative Law Judge A hear
ing in this proceeding was held at Pottsville Pennsylva
nia on 7 August 1985 and at Reading Pennsylvania on
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 13 14 19 20 and 21 August 1985 on complaint of
the General Counsel against six separate companies oper
ating as a single integrated employer (the Respondent or
the Company) The complaint issued on 8 March 1985
on charges filed by International Union United Mine
Workers of America on 16 July 1984 and on 9 January
1985 The essential issue is whether the Respondent vio
lated Section 8(a)(5) of the statute Briefs were filed after
the close of the hearing by all parties
On the entire record and from my observation of the
witnesses I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent consists of six separate corporations
all operating under common supervision their operations
integrated and functioning as a single employer in their
labor relations vis a vis the Union here Gilberton Coal
Company is engaged in reclaiming fine anthracite coal
B D Mining Co performs the same type of operation
Bear Ridge Shops Inc does welding and machine shop
fabrication Gil Pre Corp is in the business of processing
raw culm banks R&R Energy Corporation does hydro
processing of anthracite materials Gilberton Energy
Corporation is in the business of processing and manufac
turing anthracite filter media All of these companies
either ship over $50 000 of products to points outside the
State of Pennsylvania or receive $50 000 of services
from others of the six integrated companies which in
turn ship materials directly to points outside the State I
find that the Respondent as a combined single operation
is engaged in commerce within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that International Union United Mine Workers
of America is a labor organization within the meaning of
Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The record of this heanng consists of two very volu
minous parts ( 1) exhibits received in evidence in great
number and (2) a very extended transcript of testimony
which does no more than belabor without end conflict
ing contentions about what meaning should be attached
to the unquestioned objective proof shown by the docu
merits It is a refusal to bargain case the complaint
having issued after 10 months of meetings between the
parties negotiations bargaining exchange of proposals
etc The General Counsel admits that after 5 months of
continuing bargaining the Respondent had a legal right
to put in effect which it did its last complete contract
proposal which the Union had rejected because in the
words of the General Counsel the Respondent had
always bargained in good faith Nevertheless 4 days
after issuing that written decision he issued this corn
plaint which in its entirety alleges that the Respondent
had not bargained in good faith during that same period'
After careful study of the repetitive argumentative
and very revealing testimony of the three principal wit
nesses in support of the complaint-their testimony ex
tended into almost 5 days of the 6 day hearing-I shall
recommend dismissal of the complaint on two separate
grounds The first is a ruling on the Respondent s
motion filed before the hearing opened to dismiss the
complaint a ruling which in no sense relies on any of the
testimony given throughout the 6 day heanng that fol
lowed The second ground for dismissal is based on my
conclusion that on considering the merits of that oral tes
timony and additional documents the General Counsel
has not proved by a preponderance of the affirmative
evidence on the record as a whole the merits of the
complaint The two rulings stand completely apart
A The Case in Brief
This Respondent has long recognized the Charging
Party Union as bargaining agent of its employees with
the last contract covering the period to 31 May 1984
That contract was negotiated by the Union with the An
thracite Operators Wage Negotiating Committee (the As
sociation) and this Company like some others agreed to
be bound by that contract In March 1984 it notified the
Union it no longer would be bound by any agreement
between the Union and the Association and that it was
giving notice of termination of its contract and a desire
to negotiate a new one The Union did not respond until
May and the parties then met briefly three times toward
the end of the month On the night of 31 May at the
very moment the Association contract expired the
Union called a strike against the Respondent The signs
carried by the pickets then read No Contract No
Work
Thereafter there were a number of meetings between
the parties the Company offering a number of proposals
for contract renewal the Union asking for various kinds
of information the Respondent giving some as requested
and telling the Union it could obtain other information it
sought from governmental reporting agencies On 25
September 1984 the Company placed in the hands of the
union agents a complete proposal so many pages a com
prehensive complete agreement settling all issues The
Union rejected it and in October the Company put the
entire proposal in effect among its employees With this
late in October the Union filed a charge with the Board
The essential elements of that charge are that the Com
pany violated Section 8(a)(5) of the Act by not furnish
ing relevant information as requested and by unilaterally
changing conditions of employment meaning of course
putting its last proposal into effect without union agree
ment
Five months later on 4 March 1985 after what must
have been a very exhaustive investigation of the facts
the Board s Regional Director issued his determination
that when the Union put its last offer into effect there
had been reached an impasse in the bargaining that the
employers have bargained in good faith and that there
fore the employers were privileged to implement its last
offer The Regional Director decided there was no
merit in the charge that the Company had violated Sec
tion 8(a)(5) of the Act by that action The Union ap
pealed that decision of the Regional Office to the Gener
al Counsel of the Board in Washington D C On 9 May
GILBERTON COAL CO
1985 the General Counsel in Washington agreed with
the Regional Directors decision saying among other
things contrary to the contentions on appeal it was
concluded under all the circumstances that the parties
reached an impasse on 25 September 1985 The parties
engaged in lengthy negotiations in good faith proposals
and counterproposals being introduced from both sides
of the bargaining table
The complaint in this proceeding issued as amended
on 8 March 1985 precisely lists no less than 19 separate
violations of Section 8(a)(5) of the Act by the Respond
ent before it put its final offer in effect in October 1984
Each of the allegations speaks of information requested
by the Union but not furnished by the Company There
are also in the complaint very minor items of later infor
mation asked for but not furnished after the October
events
On 16 July 1985 the Respondent filed a motion with
the Board asking for dismissal of the complaint as it
now stands because if there was good faith bargaining
from May through October 1984-as found by the Gen
eral Counsel himself-to say now that in the earlier
period the Respondent violated Section 8(a)(5) of the
Act is a farce and makes a mockery of the statute On 2
August 1985 the Board put off its decision on that
motion and instead referred it to the administrative law
judge for initial determination I take this technique to
mean the Board felt a more comprehensive picture of
what happened would be helpful in its final decision
B Ruling on Motion
I grant the motion to dismiss the complaint regarding
each and every allegation about events that occurred
before mid October 1984 when the Respondent imple
mented its final offer to the Union The critical phrase
underlying this decision is good faith It appears in the
statute and has remained unchanged since its original
passage in 1935 Under the section entitled Unfair
Labor Practices it reads as follows
Sec 8(d) For the purposes of this section to bar
gain collectively is the performance of the mutual
obligation of the employer and the representative of
the employees to meet at reasonable times and
confer in good faith with respect to wages hours
and other terms and conditions of employment
Throughout the years that one phrase good faith has
been the ultimate test in deciding whether a respondent
has met the bargaining requirements as set out in the
statute It has been used too often to require citation of
precedent here In every remedial order to bargain fol
lowing findings of violations of Section 8(a)(5) by the
Board the order has been to bargain in good faith In
every case where the superficial up front seeming col
lective bargaining was examined the test was always
whether the picture as a whole showed good faith in
the negotiations For example see Kayser Roth Hosiery
Co 176 NLRB 999 (1969) This is an 8(a)(5) case
Indeed the complaint even alleges that the strike which
was started on 1 June 1984 was caused by the Compa
ny s unfair labor practices How could it have been corn
351
mitting unfair labor practices at the same time that it was
bargaining in good faith? To ask the question is to
answer it
There have been cases where joined with allegations
of refusals to bargain there were separate allegations of
violations of Section 8(a)(3)-the discharge of a man-or
separate allegations of violations of Section 8(a)(1)-co
ercive conduct toward individual employees I suppose
there could be good acceptable or good faith bargain
ing while at the same time such unrelated violations of
Section 8 (a)(3) or ( 1) can be found But to say that this
Respondent was refusing to bargain-that is what any
violation of Section 8(a)(5) is'-while at the same time it
was not violating Section 8 (a)(5)-that is what good
faith bargaining is'-is incoherent reasoning which my
mind cannot accept Unlike the situation where the
8(a)(3) or ( 1) violation stands apart from the bargaining
process here the separate violations of the statute go
to the very heart of the 8(a)(5) violation which was dis
missed If there is one thing that proves a refusal to bar
gain honestly or in good faith it is the refusal by an
employer to furnish information about its operations
which are relevant and necessary to make the bargaining
coherent and meaningful This is exactly what this Re
spondent is now said to have done If in fact it refused to
furnish the necessary information about its business how
can it be said it in fact bargained so correctly that it was
privileged to put the last of its offers in effect unilateral
ly9
What the General Counsel is really doing in this case
is asking the Board to reverse the original finding-by
the Regional Director-that there was no 8(a)(5) viola
tion before October 1984 If the Board were to conclude
on this record that the Respondent in fact committed all
those violations now listed in the complaint before the
Company acted unilaterally in implementing its last offer
it must compel the Company to undo its past miscon
duct and start bargaining all over again in good faith
This means stop acting unilaterally or restated undo
the effects of its implementation of its last offer Under
the scheme of the statute it is the General Counsel who
decides when to issue a complaint not the Board If the
General Counsel wishes to alter his basic position that
the Respondent in fact bargained in good faith up to
October 1984 he can consider setting aside his decision
of 4 March 1984 and 9 May 1985-dismissing the guts of
the Union s charge-and start all over again That possi
bility is not my concern
Actually the real concern of the Union now as well as
of the General Counsel is not an order to bargain The
parties met after the October 1984 events and did con
tinue their negotiations albeit fruitlessly There is no
direct evidence of literal refusal to bargain for the
Company never in fact withdrew recognition from the
Union What this proceeding really seeks is a finding
again specifically requested in the complaint that when
the strike started on 1 June 1984 it was an unfair labor
practice strike caused by the Company s earlier viola
tions May an employer change conditions of employ
ment unilaterally while its employees are on strike in
protest against its committed unfair labor practices?
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Again to ask the question is to answer it Aware of the
weakness of that position the complaint then plays
games It says the stake was caused by the May
events and was prolonged by the later events Which
is it? All this boils down to is that after 20 months of
strike and picketing with the strikers having been re
placed by the Respondent the Union is hoping in one or
another to get their jobs back When unfair labor prac
tice strikers offer to return the employer must let go the
replacements to make place for the returning strikers
That is what this case is really seeking to achieve
If ever there was a picture of the clearest economic
strike this is it When the parties talked on 30 May after
two short and meaningless meetings the very day before
the old contract expired the Respondent offered to con
tinue the old contract in effect pending negotiations
with privilege to either party to terminate it on 2 weeks
notice The Union wanted none of that Instead it made
a counterproposal It was that the Respondent agree to
accept and be bound by whatever might be agreed on
in the simultaneous negotiations that were going on be
tween the Union and the Association These were the
negotiations from which the Respondent withdrew when
it advised the Union 3 months earlier that it wished to
bargain independently of the Association What the
Union was proposing that day was that the talking that
would go on between it and this Company would be
meaningless just a charade because the Company would
already have committed itself with finality to a contract
still to be negotiated between two parties with whom it
had nothing to do at all It was but another way of
saying We are not really going to bargain with you we
will just put in a show and when it is over you will be
bound by the doings of somebody else What better
proof that the Union never intended to negotiate in good
faith with this Company? If there was no good faith in
the later negotiations it was on the part of the Union
not the Respondent whom the General Counsel himself
exculpated the following year
C Ruhng on the Evidence
When the Union first started talking with the repre
sentatives of the Respondent on 10 May 1984 for the
first time it had no intention of reaching any agreement
with this Company in any way different from what it
was planning to negotiate with the Association from
which the Respondent had withdrawn 2 months earlier
The beginning proof of this state of mind is in the fact it
did not even respond to the Respondents request for
bargaining until it was close to completing its negotia
tions with the Association In fact those negotiations
were finished and a new contract agreed on between
those parties on 2 June 1984 Two days earlier on 30
May the Union made its first proposal to this Respond
ent and it was that it agree before any substantive bar
gaining took place between them to be bound by what
ever contract was reached between the Association and
the Union It was not until months later that the Union
first came up with any kind of real proposal for renewal
at all despite the Company s repeated attempts to get
agreement on a number of economic and other contrac
tual changes At the hearing long after the events it was
shown in an affidavit of August Vehar the lawyer and
principal representative negotiating for the Union that
he had been instructed by the International Union s
office which had sent him on this assignment to make no
concession to this Company That the Union had no in
tention of agreeing with this Company to any contract
establishing conditions of employment different from
whatever its agreement was with the Association could
not be clearer It rejected the Company s proposal to
extend the old Association contract for consecutive 2
week periods and struck instead the moment the old
contract expired
The truth is that at the moment the strike started the
Union had not even entered into the bargaining process
On 18 May the first time the parties met Vehar told the
company representatives as he himself testified he was
not sure he could bargain because the Respondent s
withdrawal from the Association had been improper At
another point in his testimony Vehar said he did not
know whether the six companies which integrated as he
always knew they were were in fact a single employer
for bargaining purposes He certainly knew it was a
single contract binding all the six companies which had
just expired and that he was meeting the representative
of all six in a single bargaining session He added it was
not until 30 May that he became sure of who he was
dealing with and what for Again on 12 June 2 weeks
after the strike began he asked the company represents
tive to sign the contract which 2 weeks earlier had been
settled between the Union and the Association To now
say as does the complaint that when the strike started it
was because the Company had refused to bargain at the
Union s request is a pure farce Funnier still toward the
end of the hearing the General Counsel called Richard
Trumka the president of the International Union to tes
tify under oath that the strike was called because of the
unfair labor practices already committed by the Re
spondent To Trumka s credit it must be said he was
honest in his testimony for while stating his opinion
about the cause of the strike he candidly admitted he
knew nothing about the facts of the case resting his
opinion purely on what other officers of the Union had
told him His opinion of course has no bearing on the
merits of this complaint
Before proceeding with the flood of information re
quested by the Union two aspects of this record must be
made clear The first is that I will consider here only
those items of information listed in the complaint about
which illegal refusals to furnish are alleged Vehar the
main witness in support of the complaint was on the
stand for 3 full days and in his talking added a number
of other items of information which he said he asked for
and was refused Aside from the fact the Charging Party
may not add to the complaint which Vehar as a lawyer
very well knew his testimony befuddled the record and
was an effort to mix up the story so as to make it more
convincing not a technique by a lawyer which could
add to his credibility The second aspect to be kept in
mind is that as a witness Vehar equivocated changed his
story avoided answering direct questions and argued so
continuously that wherever he is contradicted on this
GILBERTON COAL CO 353
record by any other witness I do not credit a word he
said His story was too prolonged to be repeated here
minutia but some examples will serve the purpose well
enough
At all the bargaining sessions Vehar was accompanied
by David Blitzstein referred to in the record as an econ
omist Together they did all the talking for the Union
One of the complaint allegations is that from 15 June and
thereafter the Respondent refused to grant the Union
access to its financial records On this subject Vehar
started his testimony with saying the Company had told
him and his conegotiator it could not afford to pay the
Union s demands He [John Pehno the principal com
pany spokesman] said unless there were these changes
that the companies will just wither away and die If
there were nothing else in this record his total testimony
with reference to this one item is enough to discredit him
completely To start with the letter of demand on which
the allegation rests does not even suggest the demand
was predicated on a plea of inability to pay It reads in
stead
Also please provide us with all the information that
you clients have relied on when they claimed they
cannot be competitive under the collective bargain
ing agreement previously applicable to your clients
Although the beginning of his testimony was essential
ly that the Company could not afford to pay the Union s
economic demands later still on direct he admitted
that they had not pled poverty in October but I in not
sure Then on cross examination came the following
I never made the statement that you were unable to
pay Clearly the witness was lying Nothing could be
clearer on this record than that the only thing the Re
spondent told the Union was that it intended to invest
more money in its business to alter its character some
what and therefore was unwilling to bind itself to pay
what the Union s economic demands were See Buffalo
Concrete 276 NLRB 839 (1985) The first complaint alle
gation merits no further comment
At a number of points in his testimony Vehar was
confronted with documents provided by the Company in
response to demands for information They were very
damaging to his contention that the Company had re
fused to give him that information His technique to
avoid the obvious result of such documentary proof that
his testimony was all wrong was a resort to a device
which only added to his very poor credibility He said
that that particular document was handed to Blitzstein
who sat next to him at the bargaining sessions disassoci
ated himself from Blitzstein as though the two had noth
ing to do with one another I have not examined the
substance of that That was examined by Mr Blitzstein
Again [H]ave you checked any other source on that in
formation? A I have personally not That was in the
control of Mr Blitzstein I believe Mr Blitzstein is
independent of me I understood that Mr Blitzstein was
being an independent person from me It is difficult to
believe such a statement would come from a lawyer pre
sumably an expert in the field of labor law Again had
he seen any of the documents? I didn t say I didn t see
any of the documents but I did not examine them I
did not examine all of the carefully
The witness testimony is shot through with evasion
after evasion Had he seen a certain complaint? Q Have
you not seen this complaint? A I have not reviewed the
complaint I have seen it but I have not reviewed
it Asked had the Company said it was willing to nego
bate all the contract his answer was No not in those
words He was told that one of the items of information
he wanted could be obtained by requesting an audit from
a certain union fund Did he know he could get that9 I
knew we could ask anybody for an audit including the
Office of Surface Mining Q Did you know that
this was a Federal agency that you could ask for an
audit and get one? A Not and get one no I did not
know that Finally did he request the audit9 First
Vehar answered yes then added that he could not recall
At another point this witness whose testimony went to
the heart of the case about just what was asked for and
what was produced avoided the cross examiner with the
phrase my memory is foggy
On 1 May 1984 before arranging any meeting for bar
gaining as the Company had earlier requested the Union
sent a letter listing no less than 18 separate items of in
formation about the Company s method of operations
Only two of these appear in the complaint as something
the Company should have supplied This means of
course that even in the General Counsels opinion 16 of
the 18 items represented no more than a harassment tech
nique intended to delay the bargaining and had nothing
to do with the proper subjects of collective bargaining
That letter is a perfect example of the Union s attitude
throughout the events recorded in this record
Two of the items mentioned in the original complaint
asked for the number of employees who had worked in
each shift during the last 2 month period and the number
of sick days paid by the Company during that same
period Regarding what this information had to do with
the bargaining that was to take place for conditions of
employment that were to govern tomorrow no coherent
explanation was given Asked why he had asked for this
information relative to sick leave Vehar answered He
did not know It obviously was not related to any de
mands the Union ever made on the Respondent Even so
the Company s principal negotiators did describe to the
union agents the total operations of these six companies
involved as well as state the number of employees work
ing on a shift The Union was also given the entire pay
roll costs for the period in question The Union also got
the totals paid by the Companies for sick leave from
which the union agents could easily calculate how many
days of sick leave had been involved In fact Blitzstein
had actually figured that out himself This question about
sick leave and days worked in the past therefore present
nothing in support of the complaint
Another complaint allegation is that the Company
failed to supply information pertaining to illnesses under
the workmens compensation claims during the past 3
years in the words of the Union s demand The Union
knew as was admitted at the hearing that illnesses stand
apart from accidents or injuries under the Pennsylvania
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Workmen s Compensation Law Indeed they did not
know of anybody who had been taken sick at all Vehar
said We don t know if there s really any problem
even if there isn t a problem yet we want to make sure
that one doesn t develop in the future When the corn
pany representatives asked for any individual instances of
illnesses the Union said that they knew of none It ended
with the Company saying if the Union heard of any
problems it could bring them to the Company s atten
tion which would then hire an expert to look into the
problem Why this sort of information request was put in
the complaint I am at a loss to understand
The Union wanted to know how much the Company
was paying the strike replacements to work and the
General Counsel put that tern into the complaint also
The Union did not have to ask because it knew as the
Company had told it that the pay conformed with the
contract it had put in effect in October the one which
the Union had rejected Does the employer have to tell
the union how it is managing to continue its business
while the union carrying on an economic strike is
trying its best to shut it down completely so it will just
die?
The Union also demanded to see the individual agree
ments between the Company and any strike replace
ments Later the Union expanded this request to include
probationary agreements The only agreement this
Company has with individual employees is a confiden
tiality agreement to protect the Company s patent
rights Aside from that the Company had some employ
ees sign agreements to a 30 day probationary period Ap
parently this was in conflict with the contract which the
Company had implemented unilaterally It would seem
the Union was attempting to enforce the same contract
which it was simultaneously saying in its then pending
charge was illegal a violation of Section 8(a)(5) Can a
union at the same time enforce a collective bargaining
agreement while litigating its legality? In any event the
Company stopped making strike replacements agree to
probationary agreements The Union filed a charge with
the NLRB on this so called violation of the contract by
the Company It also filed charges accusing the Compa
ny of changing supervisory work of not adhering to the
proper grievance procedure of not furnishing necessary
information for processing grievances All those charges
were dismissed by the Regional Office on 27 June 1985
because there was no contract in effect therefore the
Union had nothing to complain about In the face of
those dismissals the General Counsel went ahead and
added some of those items as further unfair labor prac
tices in this complaint
In mid July before the Company implemented its pro
posal of new working conditions the Union asked for
permission to tour the workplace The old contract
did provide such privilege to the union agents The Re
spondent s refusal to permit the union agent to inspect
the premises is also called an unfair labor practice in the
complaint Conditions of employment are one thing-
how much people are paid what their fringe benefits are
and things of that kind How the union may represent
the employees vis a vis the employer is something else
again Although a collective bargaining agreement may
provide for such arrangements they do not involve the
employees conditions of employment and therefore
they do not survive expiration of the contract There is
no ment in this complaint allegation now
Some of the complaint allegations are worded in the
exact phrases used by the Union in sending its demands
to the Respondent They are so detailed so repetitive so
miniscule-page after page-that to list all of them here
in this decision would be pointless A single example will
suffice
Identify all persons who currently perform or
who have performed since June 1 1984 clerical
administrative bookkeeping managerial engineer
ing estimating or other services for each of your
six clients As to each such such [sic] person identi
fy the exact nature of the services performed for
each of the six clients If the person now perform
ing any or all of these functions has changed since
June 1 1981 identify the dates during which each
function was performed by each person If the
person performs similar functions for more than one
client identify the procedures that exist by which
the clients determine how to compensate the person
for these services and the date these procedures or
any changes in these procedures took effect
Identify all persons who now perform or who
have performed supervisory functions for each of
your six clients since June 1 1981 and state the
nature of the functions performed by each such
person for each of the six clients If such personnel
has changed since June 1 1981 identify the dates
during which each person performed supervisory
functions for the respective client If the persons
performs similar functions for more than one client
provide the same information as requested in the
preceding question
These incredibly detailed requests for information
(going back 4 years) asked for a month after the strike
started-prove more than anything else that the Union
was not really interested in negotiating a contract renew
al with this Respondent All it sought was continuing
delay
These unending demands are interlaced with a demand
to know the names of all the customers of the Respond
ents to which it sells its products The Union s argument
in justification of all these requests is that there was a
question whether the Respondent was bargaining as a
single employer or whether it wanted a separate and dif
ferent contract for each of the separate corporations
The expired contract was a single one covering all these
companies as a single employer as the union representa
tives knew It was signed by Pierce the negotiator in the
case at bar using only the name Gilberton Coal Compa
ny The Union also knew as the record amply shows
that there was interchange of personnel there was a
single business office with a common staff a single su
perintendent of all production and maintenance with a
single location all supplies were purchased in bulk and a
single health care policy covered all the employees The
Respondent also gave the Union full information about
GILBERTON COAL CO 355
stock ownership and intercorporate relationships From
the start the Respondents bargaining proposals included
a combined seniority system joining all the companies to
gether When the last offer which the Union rejected
was put in effect it named all six companies as a single
employer If there existed any questions about the single
employer concept it was because of internal conflicts
within the Union Locals which represented the employ
ees of the Respondent at its different locations Some of
these employees preferred keeping separate seniority
rights for fear of being bumped by employees from the
other locations I do not think the Respondent was obli
gated to research its past operations-as far back as
1981-to satisfy this unwarranted curiosity of the Union
which I deem as no more than a delaying tactic to fore
stall good faith bargaining
The Respondent admits it refused to give the Union
the names of its customers Apart from the fact that such
information bears no relationship to the conditions of
employment of these employees-the only concern of the
Union under the statute-the Respondent had ample
reason to withhold such information On 3 October 1984
it filed charges against the Union for bringing illegal
pressure on its customers to force them to cease doing
business with the Respondent and the General Counsel
issued a complaint based on that charge alleging viola
tions of Section 8(b)(4) of the statute I can think of no
better justification for a struck employer to withhold the
identity of its customers from the striking union
The talking between the parties continued even after
October when the Company s complete contract propos
al had gone into effect The complaint now says that on
28 November the Union wanted to know whether a
proposed pension claim would apply to Gil Pre one
of the six companies which constitute the single Re
spondent Does this mean the Company had by that
time proposed changes in the conditions of employ
ment? Does it mean the Union did not understand the
fully written contract which in fact was then in effect? I
do not know In any event the record shows that the
company representatives more than once told the Union
such payments did not apply to Gil Pre under either the
old or the new contract Whatever the case the contract
was in effect it was written and whatever it meant it
meant I do not understand how the question of the
meaning of a contract term could evolve into an unfair
labor practice
Finally we come to the requested information which
was belabored throughout the record without end The
Company contributes money to the Union s pension
fund the amount depending on the amount of coal pro
duced and the amount of ash found in the coal produced
The greater the amount of coal and the greater the
amount of ash in the coal the greater the amount of
money the Company must pay to the fund This money
payment is referred to as royalties payable by the em
ployer
The first thing the Union did on 1 May 1984 before
responding to the Respondents request to meet and bar
gain was to send a letter asking for information with re
spect to ash intake of coal produced That same
phrase appeared in the complaint describing information
which the Respondent allegedly in violation of Section
8(a)(5) of the Act failed to produce
Before getting to the facts which show the Union had
access to and did obtain the requisite information from
authoritative sources there must be mention of a reality
that logically dictates dismissal of this aspect of the case
without question While examining the audit reports
given to it by the fund as requested and as authorized by
the Respondent the Union filed a charge with the Na
tional Labor Relations Board accusing the Company of
the 8(a)(5) violation by refusing to make royalties pay
ments on coal produced On 12 July 1985 the Board s
Regional Director dismissed that charge saying
I find that the allegation of the charge that the Em
ployers violated Section 8(a)(1) and (5) of the Act
by failing to make royalty payments on coal pro
duced for use or for sale lacks merit The Union
contends that the Employers have under reported
their coal production to the pension fund The
Employers contend it has complied with its obliga
tions to the pension fund Thus the parties have a
dispute as to the Employers compliance with their
reporting and royalty payment obligations It is well
settled that not every breach of a contract also con
stitutes an unfair labor practice The Board has
held that it will not enter a contractual dispute to
determine which parties interpretation of the con
tract is correct
There was no appeal from the Regional Directors dis
missal of that charge
If one issue-whether an employer is not complying
with the terms of a collective bargaining agreement-
does not touch on an unfair labor practice under the stat
ute how can failure to discuss it or to show the Compa
ny s records about it constitute an unfair labor practice?
Again a final time to ask the question is to answer it
no
Actually the Union always did have access to the in
formation in question-how much coal was produced
and what was its ash content The Association contract
in effect during the period for which the Union wanted
to know required the Companies to make monthly re
ports and contributions to the Anthracite Health and
Welfare Fund (Pension Fui d) The information to be
filed by the Companies had to be accompanied by sworn
affidavits to their truths The Respondent consented to
have the fund release all of its reports it had filed with
the fund It even handed the Union a summary of all the
contributions it had made to the fund throughout 1984
The Union was entitled to have audits from the fund pre
pared by certified public accountants Of the three trust
ees in charge of the fund one was a member of the Inter
national Union surely a safeguard for the Union here
There is even a letter to the Charging Union from the
attorney for the fund verifying that the audits which
the Union had received had been conducted for the
very purpose of assuring proper contributions by this Re
spondent The Union therefore had all it could want and
more
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shorn of all the verbiage and argumentation that came
from Attorney Vehar throughout his testimony what it
amounted to was that he felt-with no evidence at all-
that this particular company had been filing false reports
to the fund s trustees and that therefore he wanted to
look at the original records of the Respondent those on
which it had submitted its periodic reports and payments
to the fund Asked after much bickering at one meeting
after another whether a new more current certified
audit from the fund would have satisfied him Vehar s
answer was a simple no It is clear to me that all the
Union s principal negotiator was trying to do throughout
these protracted bargaining sessions was to stall the ne
gotiations to create problems where there were none
and to avoid having to come to terms with the Respond
ent
As I look at the total picture revealed by this over
long record transcript I agree with the original decision
reached by the Regional Director before he issued this
complaint that this Respondent had always bargained in
good faith and that it did not commit any unfair labor
practices before October 1984
D The 8(a)(1) Allegations
John Stetts was hired by the Respondent in February
1984 He spoke to Brian Rich then a superintendent
Stetts testified that in the general conversation after talk
ing about good schools and football and everything like
that Rich asked him what did he think about the
Union When Stetts said They re pretty good Rich
came back with That s not a very good thing to say to
me As they continued to talk Stetts said he could take
it or leave it and Rich then said [T]hat s the problem
with unions and all they started like 40 years ago and
like I just agreed with him and he just gave me the job
then Rich then had the applicant sign a dues checkoff
card so he could join the Union Two months later Stetts
was released according to seniority and then rehired He
worked continuously until the strike Rich did not testi
fy
I find nothing improper in the general conversation
that took place that day between the two men especially
with the supervisor having the man sign into the Union
then and there Rossmore House 269 NLRB 1176 (1984)
Louis Wolfgang testified that on or about 4 October
1984 Frederick Israel a company superintendent called
him on the phone and asked How did the meeting go
and that he answered I don t care to discuss it The
witness explained the meeting had been held the day
before to discuss a letter the Company had sent to all the
employees asking them to consider the Company s offer
and to return to work The General Counsel calls this
questioning by the superintendent illegal interrogation in
violation of Section 8(a)(1) of the Act
As the witness continued to ask questions it then de
veloped that it was he who had first called the Company
that day to talk to Pierce the Respondents chief negoti
ator at the bargaining sessions then in progress Wolf
gang said he had called to ask Pierce something about
the letter the men had received because he wished to ask
whether the men would be discharged if they did not
return Pierce was not available and therefore Israel
called Wolfgang back to ask why had he called All this
means is that the conversation now called unlawful was
started by the employee not by the agent of the employ
er In the circumstances with the employees wanting to
know whether he would be fired-but nobody ever told
that to the employee-and the supervisor responding
only with asking was he coming to work I find nothing
violative of the statute as having occurred
Two strikers testified about telephone calls they re
ceived at home at the end of October 1984 from
Edward Shearn a security guard working for the Re
spondent to guard the premises Shearn is the police
chief in a joining town and with his sons has an agree
ment with the Respondent to protect the Company its
property He runs the Shearn Detective Agency servic
ing other companies as well Donald Lotshaw a striker
testified that Shearn told him there was work available
that the Company was planning to expand that the
working conditions would be very favorable Shearn also
said according to Lotshaw that if the men wished he
would set up a meeting for them with Rich one of the
owners When Lotshaw called Rich a liar still according
to the witness Shearn told him don t let the goons from
West Virginia tell you what to do
John (Jackie) David also a striker quoted Shearn as
telling him on the phone how come the men weren t
back to work that he was talking to Jack Rich and
that Jack Rich told him to relay a message that work
was available At that point David simply answered
that the men were on strike Shearn then said still ac
cording to the witness that I should talk to the men to
try to get the men to go back to work When David
came back with I couldn t do it that we have union
representatives up here from the International Shearn
said What the hell where you listening to those sons of
bitches for from Pittsburgh and Washington Shearn
then added Why don t we have a vote by writing in
stead of a raise by hands vote Shearn s final statement
as the witness recalled was if we wanted to get togeth
er he could call Jack Rich or that Jack Rich was sug
gesting that we would get together with him Asked to
repeat the witness then said He had told me that Jack
Rich wanted to get together with us to discuss the pro
posal
Called as a defense witness Shearn said that one
evening one of his sons told him several of the stnkers
had asked him (the son) would he call Rich to find out
whether the jobs were still available to the strikers and
that as a result he telephoned Rich to ask if the jobs
were still there Rich said they were and therefore as
Shearn continued to testify he called some of the strikers
whom he knew as neighbors where he lived One of the
men responded by telling him to telephone Jackie David
because he was the president of the Local Union Shearn
did and when he said the job was still available to the
strikers David asked him could he arrange a meeting be
tween the strikers and Rich personally at Gilberton
Shearn s answer was he would have to be nuts to meet
you down there Shearn explained this comment be
cause of the animosity that had developed in the course
of the strike
GILBERTON COAL CO
Shearn denied any member of the Respondent ever
asked him to negotiate on their behalf or to call any of
the strikers or to arrange a meeting of any kind He also
testified he never asked Rich would he meet with the
strikers Shearn s final statement was that he did what he
did out of the goodness of my heart
I do not think the General Counsel has carried the of
firmative burden of proving Shearn was an agent of the
Respondent It is an old principle of law that agency is
not proved out of the mouth of the agent It takes some
thing more In his brief the General Counsel relies on the
fact Rich was not called as a witness But a void is not
enough to fill a requisite positive Cf Westward Ho Hotel
251 NLRB 1199 ( 1980) Clearly the arrangement be
tween the Respondent and this detective agency had
357
nothing to do with employee relations In fact a written
communication from the Company to Shearn personally
sent in August 1984 while listing a number of many obli
gations toward security says not a word about any com
munication between the guards and the employees on
behalf of the Company Shearn was honest enough not
to deny his expressions of dislike toward the union offs
cers blaming them for the industrial dispute that was
hurting the employees I have no reason not to believe
his further statement that no member of management
ever asked him to discuss the dispute in progress with
the strikers I shall therefore recommend dismissal of this
allegation of the complaint also
[Recommended Order for dismissal omitted from pub
lication ]